What do you really know about the "interactive process" under the Americans with Disabilities Act? This is one area in which I am always getting questions, and I think it's the terminology that scares employers. "Interactive process" sounds so intimidating.

Instead of "interactive process," it should be called "sit-down."

When an individual needs a reasonable accommodation, the employer is supposed to have an actual or virtual "sit-down" with the individual to brainstorm about reasonable accommodation options. As with all sit-downs, face to face is best, but it's also fine to do it by telephone or email.

Once all the accommodation options are on the table, the employer considers them all, giving due consideration to any suggestions made by the individual. The employer then chooses the one that works best. If the employee suggests an accommodation that costs $10,000, and the employer knows of an effective accommodation that costs $10, the employer has the right under the law to pick the $10 accommodation.

Sometimes neither the individual nor the employer will know of any accommodation that will work. In that case, you document what you did, and take whatever action is appropriate under the circumstances.

Isn't that easy?

Now that you've had that quickie lesson on the ADA "sit-down" "interactive" process, here's a quiz. As usual, there is no grading and no pressure, because the answers immediately follow the questions.

What is the ADA interactive process?

*Ugh! Gives me a headache just hearing those words.

*Talking directly about reasonable accommodations with the individual.

*ADA? Does this have something to do with toothpaste?


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The correct answer, of course, is "Talking directly about reasonable accommodations with the individual."

You did a great job! Read on . . .

Next question!

An employer has to engage in the interactive process only with employees who need accommodation (not with applicants or offerees).

*True.

*False.


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The correct answer is "False." Reasonable accommodations may be required at any point in the hiring and employment process. An individual may need accommodations to even be able to apply for the job. After an offer of employment is made, the individual may not be medically cleared by the doctor to work but may still be able to do the job with a reasonable accommodation (or, possibly, be considered for a more appropriate vacant position). So these "pre-employment" accommodations may also require the employer to talk with the individual about possible reasonable accommodations.

Here is another one:

If the individual suggests an accommodation, the employer has to

*Give it first consideration.

*Go with the individual's suggestion, as long as it works.

*Pfft -- what does the individual with a disability know?

*It is inappropriate for an employer to speak directly with an individual.


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The correct answer is "Give it first consideration." The key word here is "consideration." You have to consider it (and in good faith), but you don't have to do whatever the individual wants. You should credit the suggestion and seriously consider it because many times the individual will be the best judge of what's needed. But not always. The individual may not know enough about your jobs, or how her proposed accommodation will affect the productivity or performance of others. This is why the law allows you, the employer, to make the final decision. And, as stated above, you can choose the cheapest and easiest accommodation . . . as long as it works. (That is, as long as it allows the individual to perform the essential functions of the job.)

And here's the last one:

Engaging in the ADA interactive process is

*A pain in the neck.

*Sometimes complicated, but sometimes very simple and easy.

*Unconscionable.

*Greatest thing ever!


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The correct answer, of course, is "Sometimes complicated, but sometimes very simple and easy." It really does not have to be a hassle, and getting reasonable accommodation issues resolved early, and with the cooperation of the individual, will save you a great deal of trouble -- including EEOC charges, lawsuits, and legal fees -- later on.

That said, "Greatest thing ever!"? Let's not get carried away.

Here are other Constangy publications from the past week that might interest you:

By Angelique Lyons, DOL Issues Proposed Rule on New Minimum Wage for Some Federal Contractors. This has everything you need to know about the proposed rule, including where to send your comments. Also an update on President Obama's decision to issue an Executive Order banning LGBT discrimination by federal contractors.

By Joe Murray, OSHA Agrees to Refer Untimely Whistleblowers to the NLRB. Non-union as well as union. You need to know about this!